Virginia Lawyers Weekly VA Lawyers Weekly
A railroad employee’s current suit alleging he was suspended for reporting railroad safety offenses is not barred by summary judgment for the railroad in the employee’s earlier suit alleging he was suspended on the basis of race in violation of 42 U.S.C. § 1981; the 4th Circuit vacates judgment for the employer and remands the case.
The district court granted summary judgment to the employer in plaintiff’s second suit under the Federal Railroad Safety Act, holding the suit was barred by the FRSA’s “Election of Remedies” provision, which says that an employee may not seek protection under both 49 U.S.C. § 20109(f) and another provision for the same allegedly unlawful act of the railroad carrier. A suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing.
Plaintiff, a carman who inspected railcars, was suspended without pay for six months in 2011. Defendant claims it suspended him because he drank a beer on duty and then operated a company-owned automobile in violation of company policy; plaintiff, who is African-American, claims the suspension was motivated both by his race and in retaliation for federal rail safety whistleblowing. He alleged his white supervisor also drank beer while on duty and the supervisor was not punished. He also alleged several instances of racial harassment, such as his co-workers hanging a noose in his locker, threatening his children and calling him racial slurs.
Less than two months after he filed the race discrimination suit, plaintiff filed a complaint with the Occupational Safety and Health Administration under the FRSA whistleblower provision. He alleged that federal law required him to identify – or “bad order” – defective rail cars for repair, but defendant capped the number of cars he could tag with such orders, effectively requiring him to violate federal law. He alleges he was suspended when he refused to comply with the caps.
Less than a month after the district court granted summary judgment to employer in the race bias suit, plaintiff filed his FRSA retaliation lawsuit. The district court granted summary judgment for employer based on FRSA § 20109(f).
Election of remedies
This appeal turns on the meaning of the FRSA’s Election of Remedies provision. We conclude the provision is unambiguous because it is susceptible to only one reasonable interpretation – that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing.
The “act” may be the “same” in both lawsuits, but the “act” is “allegedly unlawful” for fundamentally different reasons. At bottom, both the definitions of the words “the same allegedly unlawful act” and accepted grammatical rules demonstrate that the Election of Remedies provision does not prohibit plaintiff’s second lawsuit.
Even if we did find the provision ambiguous, we would still reverse because the legislative history and context of the statute demonstrates that the provision does not sweep as broadly as employer suggests.
Reversed and remanded.
Lee v. Norfolk Southern Ry. Co. (Floyd) No. 14-1585, Sept. 17, 2015; USDC at Asheville, N.C. (Reidinger) William C. Tucker Jr. for appellant; John B. Lewis for appellee. VLW 015-2-151, 26 pp.
